International law, Sixth edition
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International Law MALCOLM N. SHAW
and Minorities, pp. 38 ff.
165 In the early 1930s several hundred petitions were received but this dropped to virtually nil by 1939: see Thornberry, International Law and Minorities, pp. 434–6, and the Capotorti Report on the Rights of Persons belonging to Ethnic, Religious and Linguistic Minorities, 1979, E/CN.4/Sub.2/384/Rev.1, pp. 20–2. See also Macartney, National States, pp. 370 ff.; J. Stone, International Guarantees of Minority Rights, London, 1932, and Richard, Le Droit de Petition, Paris, 1932. 166 See e.g. Annex IV of the Treaty of Peace with Italy, 1947; the Indian–Pakistan Treaty, 1950, and article 7 of the Austrian State Treaty, 1955. See also the provisions in the documents concerning the independence of Cyprus, Cmnd 1093, 1960. 167 See further below, p. 307. t h e p r o t e c t i o n o f h u m a n r i g h t s 295 and does not define the concept of minorities. 168 Nevertheless, the UN Human Rights Committee has taken the opportunity to consider the is- sue in discussing states’ reports, individual petitions and in a General Comment. In commenting upon states’ reports made pursuant to the In- ternational Covenant, the Committee has made clear, for example, that the rights under article 27 apply to all members of minorities within a state party’s territory and not just nationals, 169 and it has expressed concern with regard to the treatment of minorities within particular states. 170 In the Lovelace case, 171 the Committee decided that there had been a violation of article 27 with regard to an Indian woman who, by having married a non-Indian, had lost her rights by Canadian law to reside on the Tobique Reserve, something which she wished to do upon the collapse of her marriage. The Committee noted that statutory restrictions affecting the right to residence on a reserve of a person belonging to the minority concerned had to have both a reasonable and objective justification and be consistent with the other provisions of the Covenant read as a whole. This had not been the case. There was no place outside the reserve where her right to access to her native culture and language could be conducted in community with other members of the minority in question. In the Kitok case, 172 the Committee took the view with regard to a petition by a member of the Sami community in Sweden that where the regulation of economic activity was an essential element in the culture 168 Attempts to define minorities have invariably focused upon the numerically inferior numbers of minorities and their non-dominant position, the existence of certain objec- tive features differentiating them from the majority population (e.g. ethnic, religious or linguistic) coupled with the subjective wish of the minority concerned to preserve those characteristics. See e.g. Shaw, ‘Definition of Minorities’, and the Capotorti Report, p. 96. See also Council of Europe Assembly Recommendation 1255 (1955), H/Inf (95) 3, p. 88. Note that the Human Rights Committee in the Ballantyne case held that English-speaking citizens in Quebec did not constitute a minority since the term ‘minority’ applied to the whole state and not a part of it, 14 HRLJ, 1993, pp. 171, 176. 169 See e.g. comments upon Norway’s third periodic report, A/49/40, p. 23 and Japan’s third periodic report, ibid., p. 25. See also Joseph et al., International Covenant, chapter 24. 170 See e.g. with regard to the third periodic report of Romania, A/49/40, p. 29 and that of Mexico, ibid., p. 35, and the fourth periodic report of Russia, CCPR/C/79/Add.54, p. 5 and that of Ukraine, CCPR/C/79/Add.52, p. 4. Note also the criticism of the Democratic Republic of the Congo for its marginalisation, discrimination and, at times, persecution of some of the country’s minorities, including pygmies, see CCPR/C/SR.2358, 2006, and of the situation in Kosovo, CCPR/C/SR.2394, 2006. 171 I Selected Decisions of the Human Rights Committee, 1985, p. 83; 68 ILR, p. 17. 172 A/43/40, p. 221; 96 ILR, p. 637. 296 i n t e r nat i o na l l aw of an economic community, its application to an individual could fall within article 27. It was emphasised that a restriction upon an individual member of a minority must be shown to have a reasonable and objective justification and to be necessary for the continued viability and welfare of the minority as a whole. In the Lubicon Lake Band case, 173 the Committee upheld the complaint that the Canadian Government, in allowing the Provincial Government of Alberta to expropriate the Band’s territory for the benefit of private corporate interests, violated article 27. It was held that the rights protected under article 27 included the right of persons in community with others to engage in economic and social activities which were part of the culture of the community to which they belonged. However, measures with only a limited impact on the way of life and livelihood of persons belonging to a minority would not necessarily violate article 27. 174 The Committee adopted a General Comment on article 27 in 1994 after much discussion and hesitation due to fears that such a comment might be perceived to constitute an encouragement to secession. 175 The General Comment pointed to the distinction between the rights of persons belong- ing to minorities on the one hand, and the right to self-determination and the right to equality and non-discrimination on the other. It was empha- sised that the rights under article 27 did not prejudice the sovereignty and territorial integrity of states, although certain minority rights, in partic- ular those pertaining to indigenous communities, might consist of a way of life closely associated with territory and the use of its resources, such as fishing, hunting and the right to live in reserves protected by law. The Committee, in an important part of the General Comment, underlined that persons belonging to a minority need not be nationals or permanent residents of the state concerned so that migrant workers or even visitors might be protected under article 27. Whether an ethnic, religious or lin- guistic minority exists was an objective question, not dependent upon a decision of the state party. Although article 27 is negatively formulated, the Committee pointed out that positive measures of protection were re- quired not only against the acts of the state party itself, but also against the acts of other persons within the state party. Positive measures may also be necessary to protect the identity of the minority concerned and legitimate 173 A/45/40, vol. II, p. 1; 96 ILR, p. 667. 174 See the L¨ansmann cases against Finland, 511/92 and 671/95, 115 ILR, p. 300, and Report of the Human Rights Committee 2005, volume II, A/60/40, pp. 90 ff. 175 General Comment No. 23, HRI/GEN/1/Rev.1, p. 38. t h e p r o t e c t i o n o f h u m a n r i g h t s 297 differentiation was permitted so long as it was based on reasonable and objective criteria. The UN General Assembly adopted a Declaration on the Rights of Per- sons Belonging to National or Ethnic, Religious and Linguistic Minorities in December 1992. 176 Article 1 provides that states ‘shall protect the exis- tence and the national or ethnic, cultural, religious and linguistic identity of minorities within their respective territories’ and shall adopt appropri- ate legislative and other measures to achieve these ends. The Declaration states that persons belonging to minorities have the right to enjoy their own culture, practise and profess their own religion and to use their own language in private and in public without hindrance. Such persons also have the right to participate effectively in cultural, social, economic and public life. The UN Sub-Commission has been considering the question of minorities for many years and in 1994 agreed to establish a five-person inter-sessional working group 177 to examine peaceful and constructive solutions to situations involving minorities and, in particular, to review the practical application of the Declaration, to provide recommendations to inter alia the Sub-Commission and the UN High Commissioner for Human Rights to protect minorities where there is a risk of violence and generally to promote dialogue between minority groups in society and between those groups and governments. In 2005, the Commission on Human Rights appointed an Independent Expert on Minorities with the mandate to promote the implementation of the Declaration; to identify best practices and possibilities for technical co-operation by the Office of the United Nations High Commissioner for Human Rights at the re- quest of Governments; and to co-operate closely with existing relevant UN bodies, while taking into account the views of non-governmental organisations and applying a gender perspective. 178 The issue of minority rights has also been taken up recently partic- ularly by European states, primarily as a consequence of the demise of the Soviet Union and its empire in Eastern Europe and the reintegra- tion of Eastern and Central European states within the political system of 176 Resolution 47/135. See e.g. The UN Minority Rights Declaration (eds. A. Phillips and A. Rosas), London, 1993. 177 E/CN.4/Sub.2/1994/56. This was authorised by the Commission on Human Rights on 3 March 1995: see resolution 1995/24. See also E/CN.4/Sub.2/1995/51. 178 Resolution 2005/79. The Independent Expert has, for example, drawn attention to the rights of women facing multiple forms of discrimination, exclusion and violence, such as women from minority communities, Press Release of 7 March 2006, and to problems faced by the Roma in Hungary, Press Release of 4 July 2006. 298 i n t e r nat i o na l l aw Western Europe. The specific response to questions of minority rights within the Council of Europe and the Conference (as from 1995 Organi- sation) on Security and Co-operation in Europe are addressed below. 179 As has been noted, the UN Human Rights Committee has pointed to the special position of indigenous peoples as minorities with a particular relationship to their traditional territory. It has been accepted that such communities form a specific category of minorities with special needs. 180 The International Labour Organisation adopted Convention No. 107 on Indigenous and Tribal Populations in 1957, an instrument with a predom- inantly assimilationist approach to the question of indigenous peoples. It was partially revised in Convention No. 169 on Indigenous and Tribal Peoples in Independent Countries, 1989. The change in terminology from ‘populations’ to ‘peoples’ is instructive 181 and the latter Convention fo- cuses far more upon the protection of the social, cultural, religious and spiritual values and practices of indigenous peoples. Unlike the prevail- ing approach to the definition of minorities generally, which intermingles objective and subjective criteria, this Convention stipulates in article 1(2) that ‘self-identification as indigenous or tribal shall be regarded as a funda- mental criterion’ for determining the groups to which the Convention ap- plies. The Sub-Commission recommended that a study of discrimination against indigenous populations should be made and this was completed in 1984. 182 A definition of indigenous populations was suggested and 179 See below, pp. 365 and 376. 180 See e.g. P. Thornberry, Indigenous Peoples and Human Rights, Manchester, 2002; S. Mar- quardt, ‘International Law and Indigenous Peoples’, 3 International Journal on Group Rights, 1995, p. 47; J. Berger and P. Hunt, ‘Towards the International Protection of Indigenous Peoples’ Rights’, 12 NQHR, 1994, p. 405; C. Tennant, ‘Indigenous Peo- ples, International Institutions, and the International Legal Literature from 1945–1993’, 16 HRQ, 1994, p. 1; E. Stamatopoulou, ‘Indigenous Peoples and the United Nations: Human Rights as a Developing Dynamic’, 16 HRQ, 1994, p. 58; Crawford, Rights of Peoples; R. Barsh, ‘Indigenous Peoples: An Emerging Object of International Law’, 80 AJIL, 1986, p. 369; J. Anaya, Indigenous Peoples in International Law, 2nd edn, Ox- ford, 2004, and G. Bennett, Aboriginal Rights in International Law, London, 1978. See also Justice Pending: Indigenous Peoples and Other Good Causes (eds. G. Alfreds- son and M. Stavropoulou), The Hague, 2002. Note in particular the cases of Delga- Download 7.77 Mb. Do'stlaringiz bilan baham: |
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